, (SITTING
AS ADEPUTY JUDGE OF THE HIGH
COURT)
Wednesday
20th December 2000

B
e f o r e :

LORD
JUSTICE ALDOUS

,

LORD
JUSTICE MA

Y

and

SIR
CHRISTOPHER SLADE

(1)
Keith Burstein

(Respondent/Claimant)

and

(1)
Times Newspapers Ltd

(Appellant/Defendant)

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Justin
Rushbrooke (instructed by A.J. Brett for the Appellants)

David
Price (instructed by David Price & Co for the Respondent)

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Judgment

As
Approved by the Court

LORD
JUSTICE MAY:

1.This is an appeal from judgments and orders of His Honour Judge Richard
Walker, sitting as a Deputy Judge of the High Court, on 29th February
and 3rd March 2000 in a libel action.Brooke LJ gave permission to appeal on paper on 19th May 2000.The appeal raises questions, of some importance to libel practitioners,
relating to the extent to which evidence may be adduced in reduction of libel
damages.The appeal arises in
curious and, in my view, unsatisfactory procedural circumstances.

2.The claimant, Keith Burstein, is a musical composer.On 3rd June 1997, the defendants published in the Diary column
of The Times the following
short article:

“A
Dedication

New
Labour and classical music’s strident traditionalists will come together in St
Paul’s Church, Covent Garden, on Friday at the world première of A Live
Flame: in memoriam John Smith MP, a concert in honour of the man who might have
been Prime Minister.The music
is by Keith Burstein, an aggressively self righteous, rather slushy composer who
used to organise bands of hecklers to go about wrecking performances of modern
atonal music, particularly anything by Sir Harrison Birtwhistle.

Friday’s
concert will be attended by Smith’s widow, Baroness Smith of Gilmorehill, and
all members of the Cabinet have been invited.Those wanting to stay in with New Labour’s groovie friends in modern
design, art and music would do well to make this Burstein gig a one-off.”

3.The claimant considered that the part of this publication that he “used
to organise bands of hecklers to go about wrecking performances of modern atonal
music” was defamatory of him.After
some delay, during which he unsuccessfully complained to the Press Complaints
Commission, he brought libel proceedings against the defendants.The defendants did not seek to justify any meaning of the
words complained of.They did,
however, plead that the words complained of were fair comment on a matter of
public interest and they gave extended particulars of fact upon which they said
the comment was based.

4.The action was due to be tried by Judge Walker and a jury on 29th
February 2000.At the outset, the
judge raised the question whether the words complained of were amenable to the
pleaded defence of fair comment.He
ruled that they were not.That
ruling is not challenged.To my
mind, it is quite obvious that the words complained of were statements of fact,
not comment, and I am mystified why the case was allowed to reach the very day
of the hearing with that plea intact.Mr
David Price, the claimant’s advocate, told us that the claimant was concerned
about the costs’ risk of an application to strike out the defence of fair
comment.He also told us that he
and the claimant would have been content for the evidence relevant to the
defence of fair comment to have been called, and at that stage he might have
applied for the defence to be struck out.

5.The judge having struck out the defence of fair comment, the claimant
applied for judgment for damages to be assessed.There was no effective issue but that the words complained of were
defamatory of the claimant, and, had the claim been economically conducted with
appropriate case management, judgment should have been given much earlier than
it was.The question for the judge
was whether the claimant’s damages should be assessed by the jury or by the
judge alone.Apart from agreement,
which unfortunately but unsurprisingly was not forthcoming, this question turned
on the application of the then very recently introduced sections 8 and 9 of the
Defamation Act 1996.These sections
provide for summary disposal of a defamation claim.Section 8(3) provides:

“The court may give judgment for the plaintiff and grant him summary
relief (see section 9) if it appears to the court that there is no defence to
the claim which has a realistic prospect of success, and that there is no other
reason why the claim should be tried.

Unless
the plaintiff asks for summary relief, the court shall not act under this
subsection unless it is satisfied that summary relief will adequately compensate
him for the wrong he has suffered.”

Section
8(4) sets out matters to which the court is to have regard.Section 8(5) provides that proceedings under section 8 shall be heard and
determined without a jury.Section
9(1) provides:

“For the
purposes of section 8 (summary disposal of claim) “summary relief” means
such of the following as may be appropriate –

(a)a declaration that the statement was false and defamatory of the
plaintiff;

(b)an order that the defendant publish or cause to be published a suitable
correction and apology;

(c)damages not exceeding £10,000 or such other amount as may be prescribed
by order of the Lord Chancellor;

(d)an order restraining the defendant from publishing or further publishing
the matter complained of.”

Following
subparagraphs provide for the parties to agree the details of a correction and
apology.If they cannot agree, the
court has power to direct the defendant to publish or cause to be published a
summary of the court’s judgment.

6.These sections give the court a discretion.The factors relevant to the exercise of that discretion include that the
court has to be satisfied that summary relief will adequately compensate the
claimant for the wrong he has suffered.Critical
to that question is the upper limit of £10,000 which section 9(1)(c) imposes on
the damages recoverable under this procedure.

7.In the present case, the defendants applied to the judge for summary
disposal on the basis that the appropriate amount of damages would not exceed £10,000.The claimant opposed the application for summary disposal contending that
his damages ought to exceed £10,000 and that it was justifiable to proceed to a
full hearing before the jury.This
issue was perceived to be affected by, if not to turn on, the question whether
the defendants could rely on the facts which they had pleaded in support of
their defence of fair comment, now struck out, in the alternative (as they had
also pleaded) in reduction of the claimant’s damages.In these tortured and unsatisfactory circumstances, the judge
heard submissions on this question.He
determined that the pleaded facts were not admissible in reduction of the
claimant’s damages, and he decided against the defendants’ application for
summary disposal.The assessment of
damages therefore took place before the jury upon limited evidence.They awarded the claimant £8,000.

8.The defendants appeal against:

(a)the judge’s decision refusing to allow them to rely in reduction of
damages on the facts which they had pleaded in support of their defence of fair
comment;

(b)the judge’s decision not to order summary disposal; and

(c)the jury’s award of £8,000.

9.The defendants in substance say that, if they had been permitted to rely
in reduction of damages on the facts pleaded in support of their defence of fair
comment, the jury’s award of damages would have been less than £8,000.Thus the main question argued on this appeal has been whether the
defendants should have been permitted to rely on the facts pleaded in support of
the defence of fair comment.On the other hand, the claimant submits that, even if the
defendants had been permitted to rely on those facts, the jury would still have
awarded him at least £8,000, or perhaps more.The claimant would have called additional evidence which, in the light of
the judge’s ruling, he did not call.That
evidence would have at least neutralised any apparent diminishing effect of the
facts which the defendants wanted to rely on.In addition, it is suggested that any aggressive attack on the claimant
would have failed, so that the fact that the attack was made would support a
submission to the jury that the claimant's damages should be increased.

10.The particulars on which the defendants wanted to rely in reduction of
damages wereas
follows:

“1)In about March 1994 the Plaintiff, along with Frederick Stocken, another
musical composer whose music, like his own, was tonal, romantic and traditional
(in the sense of being pre-modernist) in form, co-founded a group of militant
campaigners against modernist atonal music which styled itself “The
Hecklers”.

2)Through The Hecklers the Plaintiff actively and publicly sought to vilify
the music which was their target and those who composed it, notably Sir Harrison
Birtwhistle.Such behaviour, and
especially that in relation to the opera Gawain described below, was
deliberately provocative, and was insulting not just to composers such as
Birtwhistle but to all those who were connected with the performance of such
works and who listened to them for pleasure, both live and in recorded form.

3)The Plaintiff’s views about this kind of music, and the forcefulness
with which he aired them, were (so the Defendant will aver) bound up with the
very high opinion he held of his own music, in respect of which he has publicly
invited comparisons with that of Mozart, Beethoven, Mahler, Wagner, Elgar,
Puccini and Brahms.That opinion
was not at that time shared by most members of the musical establishment
(critics were for the most part hostile and he was unable to secure funding for
his work), a fact which clearly caused him great resentment.His vociferous denigration of modern atonal music, in conjunction with
the extravagant claims he made for his own compositions, were aggressive and
self-righteous in character.

4)On 14th April 1994 The Hecklers procured the publication of a
sort of a manifesto (written by Stocken on their behalf) in the Evening Standard
in which they called upon the public to join them in booing at the end of the
performance to take place at Covent Garden that evening of a revival production
of Birtwhistle’s opera Gawain, a work which Stocken described as
“sonic sewage”.The manifesto,
to the whole of which the Defendant will refer at trial, was written in arrogant
and insulting language.Furthermore,
its incitement to readers to join The Hecklers was couched in general terms and
was not limited to the one concert that was to take place that evening:“Tonight is the first outing of The Hecklers”.

5)The Plaintiff did not at the time disassociate himself from the terms of
that manifesto, from the stated aims and views of The Hecklers, or from their
conduct at Gawain described below: on the contrary, as co-founder of the
group he bore responsibility for these matters, and, although in a letter to The
Times published on 7 April 1994 he wrote that “[t]he answer to the problem of
how to impress this new spirit upon the public is surely not that of The
Hecklers the boorish tactics of shouting down the opposition”, he was
drastically to abandon this position on 14 April 1994.Furthermore, he subsequently encouraged the image of himself as a
ringleader in these events: in a Press Release circulated by him or on his
behalf in advance of a concert of his music which took place on Saturday 17
September 1994, he described himself as ‘Chief of the Hecklers’, in an
obvious reference to the events at Covent Garden; and in an article published in
the Guardian on 5 October 1996, the Plaintiff wrote:“It is one thing to agitate while doing creative work, as I
did when I co-formed The Hecklers in 1994 and announced that we would boo
Birtwhistle’s Gawain (for being dissonantly passe) at the Royal Opera House
…”

6)That night The Hecklers greeted the end of the performance of the opera
with boos and hisses.The Plaintiff
was amongst them, carried away, as he was later to claim in an interview with
the Independent Magazine published on 24 September 1994, by the “extraordinary
atmosphere” on the night, an atmosphere which he had helped to create.

7)Such behaviour must inevitably have marred the enjoyment of those others
who attended the performance of Gawain who did not share the
Plaintiff’s views, and furthermore detracted from the sense of pride and
pleasure in the performance that the composer and players were entitled to feel.

8)Only afterwards did the Plaintiff (as did Stocken) state that the
heckling at Gawain had been a one-off, and that they would thenceforth
proceed through argument, which was in itself a recognition of the boorish and
disruptive nature of the behaviour that the Plaintiff had himself been
responsible for.However, the
Plaintiff did not publicly apologise for that behaviour, or express any regret
for it.On the contrary, he
continues to remind the public of his role in those events:the Defendant will rely on the Guardian article of 5 October 1996
referred to above.”

11.As I have said, the judge determined that these pleaded facts were not
admissible in reduction of the claimant’s damages.His judgment contains extensive reference to passages in Gatley and to a
number of authorities, some of whichI
shall consider in greater detail later in this judgment.He quoted at length from the judgment of Neill LJ in Pamplin v.
Express Newspapers Limited [1988] 1W.L.R. 116 at 119D in which Neill LJ said
that, in considering what evidence can be used in mitigation of damages it is
necessary to draw a distinction between evidence which is put forward to show
that the plaintiff is a man of bad reputation and evidence which is already
before the court on some other issue.Neill
LJ set out a number of general rules for evidence which relates solely to the
plaintiff’s bad reputation.The
first of these was that it must be evidence of the plaintiff’s general
reputation and may not relate to specific acts of misconduct, and that the
evidence must also relate to the relevant area or sector of the plaintiff’s
reputation.Having referred to
other rules, Neill LJ said that a defendant is also entitled to rely on any
other evidence which is properly before the court and jury, including evidence
which has been primarily directed to, for example, a plea of justification or
fair comment.In the present case,
the Deputy Judge said that it was clear that in Pamplin Neill LJ was not
attempting an exhaustive analysis of all circumstances in which evidence in
mitigation of damages could be given:

“… but it represents, in my judgment, an analysis of what I will
describe as the mainstream bases of introducing evidence on this issue and the
limitations of such evidence.The
only significant additional area, I venture to suggest, relevant to my
consideration is that of circumstances in which it could be said that the
claimant brought matters upon himself.”

12.The Deputy Judge
then referred to other authorities.He
quoted extensively from the decision of Morland J in Godfrey v. Demon
Internet Limited (23rd April 1999), which the Deputy Judge
considered was a case of deliberate provocation by the claimant of the libels
for which he was then seeking a substantial award of damages.The Deputy Judge then said:

“In
my judgment, in a case such as the present, in which it was open to the
defendants, had they so wished, to seek to establish a defence of substantial or
partial justification but they elected not to do so, I consider that this court
should be wary of what seems to come close to an attempt to bring in a form of
justification by the back door.Only
in exceptional circumstances would it be appropriate to go beyond the normal
limits of evidence in mitigation of damages such as are set out in the case of Pamplin.Such circumstances may well have existed in the Godfrey v. Demon
Internet case, but such circumstances have not in my judgment, been
established here, despite the able submissions of Mr Rushbrooke.”

13.Having decided that the pleaded facts were not admissible the Deputy
Judge considered whether summary disposal was appropriate.This turned on whether he considered that appropriate damages in the case
should not exceed £10,000.He had
to decide this in the light of his rulings on admissibility, but bearing in mind
that, if the defendants’ attempt to introduce the facts had backfired, it
could have aggravated the damages.Some
of the material might have re-emerged in answer to cross- examination as to
credit and this again might have aggravated the damages.[As it turned out there was no such cross-examination.]The Deputy Judge’s conclusion was that it would not be appropriate for
him to conclude that £10,000 was an appropriate ceiling for the damages in this
case.It was not one of the graver
libels to come before the court.But
it had appeared in The Times; the defendants had refused to apologise and
had adopted a rather aggressive stance in the conduct of the litigation; and the
future conduct of the litigation might aggravate the damages.

14.As a result of the judge’s decisions, the assessment of damages
proceeded before the jury on limited evidence.We are told that the claimant and two or three of his other witnesses
gave evidence which no doubt explained who the claimant was and of his view of
how the publication had hurt his feelings and damaged his general reputation.There was also some evidence about delay in bringing the
proceedings.There was no evidence
about the group called “The Hecklers” nor, importantly, about what happened
at the performance of Sir Harrison Birtwhistle’s Gawain at the Royal
Opera House on 14th April 1994.There was no evidence, so I understand, about the claimant’s publicly
expressed views about modern atonal music nor of any public claim he made to
have been associated with The Hecklers and the performance on 14th
April 1994.Just as there was no
substantial reference to material upon which the defendants wanted to rely, so
the jury did not hear the claimant’s evidence and that of his witnesses on
these subjects.

15.The defendants had served no witness statements in advance of the trial.They wanted, however, to rely on a number of press cuttings and other
documents and the transcript of a television broadcast on BBC2 Newsnight on the
evening of 14th April 1994.These
documents formed the basis of the defendants’ particulars, which I have set
out in full.As is apparent, the
particulars themselves gloss the facts sought to be derived from the documents
with a substantial amount of depreciatory comment or inference.The claimant’s evidence and that of his witnesses would, if the jury
had accepted it, have put a substantially different slant on the matter.Salient summary points from the claimant’s own evidence included that,
in early 1994, he discussed with Frederick Stocken and others the possibility of
forming a group to initiate debate and to promote modern tonal music.The name “The Hecklers” was put forward, but was not then adopted.It was taken from the name of an 18th century
debating society.Shortly
afterwards, Stocken of his own volition put an advertisement in The Spectator
announcing the formation of The Hecklers and seeking others to join him.There were newspaper articles in which it was thought that
The Hecklers’ intention was to hoot throughout a concert.The claimant did not approve of this but favoured reasoned
debate.He urged Stocken not to
disrupt the forthcoming performance.He
wrote a letter to The Times, published on 7th April 1994, in which he
expressed what I read as measured views about modernist music and ended by
saying:

“The
answer to the problem of how to impress this new spirit upon the public is
surely not that of The Hecklers the boorish tactics of shouting down the
opposition.”

16.The claimant’s written evidence was that he was not associated with the
content or publication of the “Hecklers’ manifesto” that appeared in The
Evening Standard on 14th April 1994.He was not intending to go to the performance of Gawain on that
day and did not originally have a ticket.He
was given a ticket by a journalist with whom he attended the performance.He was not sitting with Stocken.It
was accepted that there was no booing or other disruption during the
performance.At the end of the
performance the vast majority of the audience applauded and some stood up and
cheered.A small number, around 15
or 20 at the most dotted around the audience, booed.The claimant was not intending to boo, but was caught up in the
atmosphere and he also booed in what he refers to as a restrained manner.

17.One of the claimant’s proposed witnesses, who was not called, was Elgar
Howarth, who conducted the performance of Gawain on 14th April
1994.He was aware of the apparent
intention of a number of individuals to boo because they objected to the type of
music of which Gawain is an example.He was neither concerned nor intimidated by this possibility.His impression was that the orchestra and singers felt the same.He observed that booing has been part of musical and theatrical
performances for centuries, although it is far less prevalent in Great Britain
than, for instance, Italy.There
was no booing or other interruption during the performance, which ended with one
note that dies into silence.As he
lowered his hand to signify the end of the performance, there were some boos
which sounded as if they were from about 3 or 4 people.Almost immediately there was a roar of approval from the audience which
would have completely drowned out any further boos.They had absolutely no effect on him and his clear impression
was that the booing had no effect on any other performer or the audience.

18.I have referred to the evidence which was not called or referred to in
some detail in part because it needs to be taken into account later in this
judgment.The important first
point, however, is that the result of the Judge’s ruling was that the jury
were invited to assess the claimant’s damages in something of a void.They had the text of the diary article which for their purposes contained
a single sentence critical of the claimant.They knew that it was to be taken as defamatory of him and
that there was no defence to the claim for damages.They knew who the claimant was in general terms.But they knew little or nothing of the context in which the defendants
came to publish this defamatory statement.That seems to me to be quite artificial and unhelpful.It will be necessary to look at a number of strands of authority to see
how this came about and whether the Deputy Judge’s decision was sustainable.In a sense however, I regret having to do this because, to my mind, it
yet again emphasises how the complicated law and practice of libel can lead to
unduly prolonged and expensive procedural manoeuvrings.

19.Gatley at paragraph 33.26 characterises evidence which is admissible in
reduction of damages under six headings.These
include (1) the claimant’s bad reputation, (2) evidence properly before the
court on some other issue, and (4) the claimant’s own conduct.

20.The admissibility of evidence of the claimant’s bad reputation centres
on the decision of the Queen’s Bench Divisional Court in Scott v. Sampson
(1882) 8 QBD 491.In summary, the
court held that evidence of general bad reputation was admissible in reduction
of damages; but that evidence of rumours that the plaintiff had done what was
charged in the libel and evidence of particular acts of misconduct on the part
of the plaintiff tending to show his character and disposition were
inadmissible.I shall consider Scott
v. Sampson in more detail later in this judgment.

21.The admissibility of evidence properly before the court on some other
issue may be illustrated by referring to the judgment of Neill LJ in Pamplin
v. Express Newspapers Limited at 120A, where he said:

“But
a defendant is also entitled to rely in mitigation of damages on any other
evidence which is properly before the court and jury.This other evidence can include evidence which has been primarily
directed to, for example, a plea of justification or fair comment.It is to be remembered that section 5 of the Defamation Act 1952 enables
a defendant to succeed on the issue of liability even though he does not prove
the truth of all the defamatory material of which complaint is made.The section is in these terms:

“In
an action for libel or slander in respect of words containing two or more
distinct charges against the plaintiff, a defence of justification shall not
fail by reason only that the truth of every charge is not proved if the words
not proved to be true do not materially injure the plaintiff’s reputation
having regard to the truth of the remaining charges.”

Section
6 of the Defamation Act 1952 contains a similar provision relating to the
defence of fair comment, and it is to be noted that from the outset the
defendants in the instant case pleaded that they intended to rely if necessary
on sections 5 and 6.There may be many cases, however, where a defendant who puts
forward a defence of justification will be unable to prove sufficient facts to
establish the defence at common law and will also be unable to bring himself
within the statutory extension of the defence contained in section 5 of The
Defamation Act 1952.Nevertheless
the defendant may be able to rely on such facts as he has proved to reduce the
damages, perhaps almost to vanishing point.Thus a defence of partial justification, though it may not prevent the
plaintiff from succeeding on the issue of liability, maybe of great importance
on the issue of damages."

22.This apparently straightforward state of law and practice, together with
other such strands, can nevertheless lead to unsatisfactory tactical
manoeuvring.In summary, other
relevant strands include (a) that a defendant to a libel action can seek to rely
on a lesser Lucax-Box meaning of the words complained of and will be
permitted to advance that meaning before the jury if the judge rules that the
words are capable of sustaining that meaning; (b) that unpleaded evidence of
justification or damaging evidence which does not in reality go to justification
at all is not admissible in reduction of damages (see Gatley paragraphs 33.11
and 33.12); and (c) that the defendant’s conduct of the case at trial in
support of a plea of justification which has failed may aggravate the damages.These can result in defendants wanting to rely on a weak case of
justification so as to be able to use the facts pleaded in support of it in
reduction of the damages which they expect they will probably have to pay; or in
relying on a strained Lucax-Box meaning of the words complained of for
the same purpose; or not pleading justification at all for fear of aggravating
the damages by doing so, but trying to squeeze the facts in by some other means.Each of these may (and often do) lead to expensive
preliminary squabbles about the sufficiency of particulars, about meaning or
about admissibility.

23.The last course is reasonably close to that adopted by the defendants in
the present case.They did not
plead a defence of justification, although the Deputy Judgethought they might have done.To
my mind, there was no sensible plea of justification available in this case.The single sentence complained of means what it says.Its meaning does not need to be expressed in any other words than the
actual terms of the publication which do not admit of any sensible Lucax-Box
lesser meaning.The single sting of
the words complained of, that the claimant used to organise bands of hecklers to
go about wrecking performances of modern atonal music, was on the facts plainly
untrue because there was no booing or other wrecking of the performance of Gawain
on 14th April 1994 during its performance and that was the only
performance which was a candidate for justifying the words complained of.On the other hand, the defendants in this case pleaded a plainly
unsustainable defence of fair comment, no doubt in the hope that it might
survive to get before the jury so that the particulars might serve in reduction
of the damages.When it came to it,
it is not surprising that the defendants failed to persuade the Judge that the
defence of fair comment should be allowed to proceed.Tactical footwork of this kind breeds complication, expense
and delay.

24.Paragraphs 33.44 to 33.46 of Gatley explain that the extent to which the
claimant’s own conduct is admissible in reduction of damages is limited.It is said to relate principally to activities that can be causally
connected to the publication of the libel of which the plaintiff complains.A defamatory publication is not justified or excused by showing that the
claimant himself has been guilty of similar conduct.But where a claimant has made a defamatory publication against the
defendant which may fairly be said to have provoked the defamatory publication
by the defendant of which the claimant complains, evidence of the claimant’s
conduct is admissible.It can
sensibly be said in these circumstances that the claimant’s conduct was
causally connected with the defamatory publication of which he complains and
that he brought it upon himself.In
the present case, there was no causal connection whatever between anything the
claimant may have said or done in 1994 or subsequently which provoked the
defendant newspaper to publish the words complained of.The claimant simply never made a defamatory publication against the
newspaper.But Gatley in paragraph
33.46 suggests the possibility that this area of admissible evidence in
reduction of damages may not be so narrowly confined.Reference is made to a passage in the judgment of Blackburn J in Kelly
v. Sherlock (1866) LR 1QB 686 at 698. For a number of reasons, I do not
consider this particular old case helpful in the modern procedural context.It was decided before the Judicature Acts 1873 and 1875, let alone the
Civil Procedure Act 1997.There was
no issue about whether the evidence in question was admissible: it had already
been admitted.Blackburn J’s
remarks were not centrally relevant to the point in issue which was whether the
one farthing damages awarded by the jury was so palpably too little that the
court should order a new trial.

25.It seems to me that it is intrinsically just that a court assessing libel
damages should receive evidence to the effect that the claimant’s conduct has
directly provoked the publication of which he complains.Typically, if there were a heated slanging match between
claimant and defendant, and the publication complained of was in retaliation to
a publication by the claimant defamatory of the defendant, there would be no
sense or justice in excluding evidence of the claimant’s publication.It would be part of the context in which the publication complained of
was made and should normally, depending on the facts, be admitted whether or not
it would be likely to reduce the claimant’s award of damages.It may be supposed that a claimant who brings a defamatory publication on
himself will normally receive a lower award of damages than a claimant who has
been defamed without provocation.There
is ample support in decided cases for admitting evidence of this kind of direct
provocation – see for example Cassell and Co Ltd v. Broome. [1972] AC
1027 at 1071.

26.Gatley in paragraph
33.44 suggests that admissible conduct of the plaintiff might include more
broadly provocative actions by the claimant.Mr Rushbrooke on behalf of the defendants in the present case based his
initial submissions on this possibility.He
submitted that the claimant’s conduct as pleaded in the particulars should be
seen as generally provocative and offensive and that evidence in support of it
should be admitted on those grounds.He
suggested that Morland J’s decision in Godfrey v. Demon Internet could
be seen, if necessary, as an example of proper controlled enlargement of the
scope of conduct by the claimant admissible in the reduction of damages.If it were necessary (as I think it is not) to confine the question in
the present case to provocation by the claimant or conduct which is causally
connected to the publication of the libel, I am inclined to think that the ambit
of this class of admissible conduct should be confined to exceptional cases in
which provocative conduct of the claimant would be admissible even though it did
not directly or exclusively provoke the defendant.Godfrey v. Demon Internet was, I think, such an exceptional
case.It concerned allegedly defamatory postings on the internet.The particulars on which the defendant wished to rely in reduction of
damages described the internet newsgroup in which the postings were made.There was an understanding that those who participated would exercise
self restraint with regard to the content of the postings.It was alleged in the particulars that the plaintiff had cynically
pursued the tactic of posting deliberately provocative, offensive, obnoxious and
frequently puerile comments about other countries, their citizens and cultures;
and had done so with a view to provoking others to trade insults which he could
then claim were defamatory and seek to use them as a basis for bringing
vexatious libel proceedings against them and against access or service providers
such as the defendant.The postings
relied on were very numerous and those to which Morland J referred in his
judgment justified the description of them in the proposed particulars.In addition, the particulars gave details of six libel actions brought by
the plaintiff against a variety of defendants in a number of countries who had
responded to his postings.The
defendant’s case was that the postings were designed to tempt people to
overstep the mark and defame the plaintiff so that he could sue.Morland J said that, untrammelled by authority, he would have no
hesitation in allowing the proposed amendment.If he did not, he would be assessing damages in blinkers.In deciding that the particulars should be permitted, he said at page 5
of the transcript:

“I
accept the argument of Mr Barca that the proposed amendments do not offend the
principle in Scott v. Sampson.They
are not introduced to establish that the plaintiff should not be awarded damages
because he has a bad or undeserved reputation but to establish that the
plaintiff should only receive derisory or small damages because of his bad
conduct which is causally connected to the libel sued upon.In my judgment, the plaintiff’s postings are germane to the defamatory
posting the subject of his claim.”

27.It will be seen that the decision was based on causative provocation
in exceptional circumstances, even though some or all of the plaintiff’s
provocative publications were not directed specifically against the defendant.The decision was also based – correctly, in my view – on the fact
that the plaintiff’s postings were germane to the defamatory posting the
subject of his claim.

28.In Scott v. Sampson, the publication complained of was to the
effect that the plaintiff, a theatrical critic, had tried to extort money by
threatening to publish defamatory matter concerning a deceased actress.There was a defence of justification.The plaintiff himself did not give evidence in support of his own case.The defendant wanted to cross-examine witnesses, including
the plaintiff (whom the defendant, surprisingly, himself called for that
purpose), to show that the plaintiff’s general conduct of his magazine was
discreditable. The questions were objected to and the trial judge upheld the
objections.The defendant also
wanted to adduce evidence relating to the character of the plaintiff and
evidence of rumours about him circulating before the publication of the libel to
the same effect as the matters complained of.The decisions appealed againstrelated
to the admissibility of evidence of reputation; of rumours of and suspicions to
the same effect as the defamatory matter complained of; and of particular facts
tending to show the character and disposition of the plaintiff.It is clear that the particular facts in the third category did not
specifically relate to the defamatory publication that the plaintiff had tried
to extort money by threatening to publish a defamatory matter concerning a
deceased actress.Cave J carried
out an extensive review of earlier authorities and then considered the
principles underlying them.On page
503, he said:

“Speaking
generally the law recognises in every man a right to have the estimation in
which he stands in the opinion of others unaffected by false statements to his
discredit; and if such false statements are made without lawful excuse and
damage results to the person of whom they are made, he has a right of action.Thedamage however which he
has sustained must depend almost entirely on the estimation in which he was
previously held.He complains of an
injury to his reputation and seeks to recover damages for that injury; and it
seems most material that the jury who have to award those damages should know if
the fact is so that he is a man of no reputation.“To deny this would,” as is observed in Starkie on Evidence, “be to
decide that a man of the worst character is entitled to the same measure of
damages with one of unsullied and unblemished reputation.A reputed thief would be placed on the same footing with the most
honourable merchant, a virtuous woman with the most abandoned prostitute.To enable the jury to estimate the probable quantum of injury
sustained a knowledge of the party’s previous character is not only material
but seems to be absolutely essential.””

Both Cave J at page 503 and
Mathew J at page 494 considered submissions to the effect that a plaintiff would
be unfairly prejudiced if he had to deal with allegations impugning his
reputation of which he had no notice.That
had formerly been a problem, but the then present system of pleading required
that all material facts should be pleaded.Cave J concluded that general evidence of reputation should be admitted
and that that accorded with the great majority of the authorities to which he
had referred.On principle evidence
of rumours and suspicion was not admissible as only indirectly tending to affect
the plaintiff’s reputation.He
then said at page 504:

“As
to the third head or evidence of facts and circumstances tending to show the
disposition of the plaintiff, both principle and authority seem equally against
its admission.At the most it tends
to prove not that the plaintiff has not, but that he ought not, to have a good
reputation, and to admit evidence of this kind is in effect as was said in Jones
v. Stevens (11 Price, 235) to throw upon the plaintiff the difficulty of
showing an uniform propriety of conduct during his whole life.It would give rise to interminable issues which would have
but a very remote bearing on the question in dispute, which is to what extent
the reputation which he actually possesses has been damaged by the defamatory
matter complained of.”

Thus Cave J was concerned
with the doubtful probative value of evidence of this kind.He was also concerned with what today might be called case management
problems.Admitting evidence of
this kind would give rise to “interminable issues” of questionable help in
determining the appropriate award of damages.But it is clear, I think, that the exclusion of evidence of particular
facts and circumstances tending to show the disposition of the plaintiff would
not extend to exclude particular facts directly relevant to the context in which
a defamatory publication came to be made.

29.In Plato Films Limited v. Speidel [1961] AC 1090, an attempt was
made to persuade the House of Lords to modify the decision in Scott v.
Sampson.The plaintiff, who was
the Supreme Commander of Allied Land Forces in Central Europe, brought an action
against the defendants claiming that he had been libelled in a film in which he
was depicted as being privy to the murders of King Alexander of Yugoslavia and
M. Barthou in 1934, and as having betrayed Field-Marshall Rommel in June 1944.The defendants pleaded justification, but also wanted to adduce evidence
in reduction of damages.This was
to the effect that the publication of which the plaintiff complained was part of
a film in which he was further depicted as having been guilty of other
discreditable conduct the truth of which he did not in his amended statement of
claim deny.The defendants wanted
to adduce this evidence as (A) “circumstances under which the alleged libel
was published”, and (B) as matters relating to the character of the plaintiff.Under the second heading, it was said that the plaintiff was widely
reputed to have been and in fact was guilty of the conduct alleged against him
in the film.The House of Lord held
that (A) was inadmissible and should be struck out; and that, as to (B),
evidence of particular acts of misconduct on the part of the plaintiff could not
be given in reduction of damages where the defendants had failed to justify the
libel complained of.Scott v.
Sampson was applied.The five
speeches reached the same conclusions, except that Lord Radcliffe did not concur
as to (B).But they contain a
variety of discussion and reasoning.

30.Viscount Simonds considered emphatically that Scott v. Sampson was
correctly decided.He observed that
this had been the opinion of the Court of Appeal in Hobbs v. Tinling & Co
[1929] 2 KB 1.He said at 1124:

“It
is, no doubt, true that in practice it may be difficult to define exactly either
the borderline between evidence of general bad reputation and that of specific
conduct which has led to it or the area of conduct which the general bad
reputation is to cover.That is
only to say that a libel action is an imperfect instrument for doing justice in
every case.There may, in the
result, be cases in which a rogue survives both evidence of general bad
reputation and, where he has gone into the witness box, a severe cross
examination nominally directed to credit, and recovers more damages than he
should.But I would rather have it
so than that the law should permit the injustice and, indeed, the cruelty of an
attack upon a plaintiff for offences real or imaginary which, if they ever were
committed, may have been known to few and by them have been forgotten.I say nothing more of the inconvenience of having one or more trials
within the original trial.The main
issue has to be determined when the defendant has failed in his plea of
justification.How many other
trials of the offences pleaded in mitigation are to be permitted?”

Viscount Simonds was thus concerned with the injustice of a plaintiff
having to deal with a wide ranging attack on his general reputation by reference
to specific conduct which has led to it.There
was thus again a case management element in the consideration.The material which was objectionable was specific conduct leading to
alleged general bad reputation, and notparticular
facts directly relevant to the context in which the defamatory publication came
to be made.

31.Lord Radcliffe considered that it was highly artificial to attribute to
the particulars under the heading (A) the description “circumstances in which
the alleged libel was published”.But
he observed at page 1127 that such circumstances are a recognised head of
mitigation.In his consideration of
the particulars under the heading (B), Lord Radcliffe said at page 1128:

“I
think that the law on all this question of mitigation of damages by proving bad
character or reputation depends upon two points of principle and, surrounding
them, a number of rules which are primarily rules of practice or convenience
designed for such purposes to contain the length of trials within manageable
limits, to prevent the jury being avoidably confused as to the bearing of
evidence on different issues, and to limit the grosser abuses of too great a
liberty of reference given to either plaintiff or defendant. …

The
two matters of principle are these.First,
is it to be permissible to call evidence of character at all by way of
mitigation?There is much to be
said against allowing it, because, if it is allowed there come in all the
difficulties of limitation and possible unfairness of which we have been made
conscious by the arguments in this case.On
the other hand, there is, I think, the preponderating consideration in favour of
this head of evidence that it would be outrageous that a person should recover
damages for injury to a character that he is generally known not to possess, or,
to put it another way, to a reputation that is not his.In my opinion, therefore, the decision of Scott v. Sampson ought
to be treated as settled law on this point, as, indeed, it has been for more
than 80 years. …

The
second matter of principle turns on this point to which I have alluded, whether
evidence of a plaintiff’s bad character is to be understood as meaning the
character which he bears in public estimation, by which I mean his reputation,
or the character which might be attributed to him on a nice assessment of all
his actions, if not his thoughts and desires, by which I mean his disposition.In my opinion, character in this context ought to mean the former
conception exclusively.”

Lord Radcliffe did not consider that it was at all clear that by settling
the two principles enough had been done to establish a workable rule governing
the limits of evidence that could be called on the issue of reputation.He could not see how it was possible to treat general evidence of bad
reputation and evidence of particular facts tending to show the character and
disposition of the plaintiff as exclusive of each other.A person’s public reputation rests on nothing more than particular
incidents of some general notoriety or else on rumour or suspicion.Lord Radcliffe then said at page 1131:

“These
considerations lead me to the opinion that it would be wrong to hold that
general evidence of reputation, which must mean reputation in that sector of a
plaintiff’s life that has relevance to the libel complained of, cannot include
evidence citing particular incidents, if they are of sufficient notoriety to be
likely to contribute to his current reputation.”

Lord Radcliffe was here expressing a minority opinion.

32.Lord Denning examined the cases which preceded Scott v. Sampson at
some length.He referred to
authority to the effect that evidence of particular facts which tended to prove
a justification was not admissible in mitigation of damages but only in support
of a plea of justification.He
cited the reason given in Starkie on Slander and Libel 2nd edition for the
distinction between particular instances of misconduct and general evidence.This was to the effect that a party might be prepared with general
evidence in support of character, but could not be supposed to be prepared with
evidence to justify his conduct through life.Lord Denning noted that Scott v. Sampson was, in 1882, the first
decision after the then new rules of pleading.Speaking of evidence of general reputation, he said at page 1140:

“When
evidence of good or bad character is given, it should be directed to that sector
of a man’s character which is relevant.Thus,
if the libel imputes theft, the relevant sector is his character for honesty,
not his character as a motorist.And
so forth.It is for the judge to
rule what is the relevant sector.”

Lord Denning addressed submissionsto
the effect that specific misconduct should be admitted in reduction of damages.An example was given where it was said that a man had been convicted six
times for dishonesty, when in fact he had only been convicted twice.It was suggested that the publisher could not adduce evidence of the two
convictions in reduction of damages because they were specific misconduct.Lord Denning said that this was not the law.The newspaper could justify in part and thereby prove the truth of the
two convictions.He then said at
page 1142:

“Seeing
that the law does not permit a defendant, in mitigation of damages, to adduce
evidence which tends to justification, it must permit him to adduce the selfsame
evidence when pleaded in partial justification:see Vessey v. Pike (1829) 3C.&P. 512 by Lord Tenterden C.J. If
it were not so, the plaintiff would recover damages for a character which he did
not possess or deserve; and this the law will not permit."

33.Lord Morris of Borth-y-Gest considered that it was objectionable if the
measuring of damages for a false defamatory publication should be the occasion
for asserting and investigating other allegations against the plaintiff with a
view to disclosing his true character and disposition.“The limits of roving inquiry would be hard to control.There would be trials within a trial.”He by inference accepted (on page 1145) that evidence of “the
circumstances under which the matter complained of was published” is
admissible.He was not persuaded to
hold that Scott v. Sampson was wrongly decided. It recorded and set out
what might be regarded as the greatest common measure of principle which emerged
from the progressive experience of trial courts over many years.He recognised that criticisms could be directed against it.There could be a slender line between general evidence of reputation and
evidence as to rumour.Cross-examination
of a witness who has given general evidence of reputation might open the
floodgates through which “streams of details and particular facts may flow”.Cross-examination as to credibility might be wide and the length of a
trial correspondingly extended.As
to the case before the House, Lord Morris agreed with Lord Radcliffe that the
particulars under (B) were not circumstances under which the defamatory
publication was made.

34.Lord Guest, in considering Scott v. Sampson, said at page 1148
that if allegations of specific instances of misconduct were allowed:

“It
would inevitably prolong the trial and tend to confuse the minds of the jury by
distracting their attention from the main issue.The result might be that a trial in which the truth or falsity of one
allegation was being investigated might degenerate into trials of the truth or
falsity of a dozen other allegations, whether or not relevant to the
subject-matter of the libel, introduced by the defendants for the purpose of
mitigating damages.”

35.I have quoted at length from the speeches in Plato Films v. Speidel
to show that a main concern was to prevent libel trials from becoming roving
inquiries into the plaintiff’s reputation, character or disposition; that what
was held to be inadmissible was particular facts said to be relevant to the
plaintiff’s general reputation or disposition; and that the case does not
decide thatparticular facts
directly relevant to the context in which a defamatory publication came to be
made are inadmissible.Indeed, two
of the speeches by inference accept that evidence of the circumstances
surrounding the publication are admissible.

36.In Dingle v. Associated Newspapers [1964] AC 371, newspapers
published a report of a Select Committee of Parliament containing material
defamatory of the plaintiff.Another
newspaper published an article relating to the same matter which was not
privileged.The question was whether the fact of the privileged
publications was available to reduce the plaintiff’s damages for the
unprivileged defamatory publication.It
was held that they could not be taken into account, since the publication of the
same libel by other persons on other occasions was irrelevant in mitigation in
general damages.The issue was not,
therefore, that which arises in this case.In the context of that case, Lord Denning said at page 412:

“Nor
can the report of a particular incident, even if it be notorious, be brought up
against the plaintiff.If it refers
to the same matter as the libel, it tends to prove a justification and is
therefore not admissible in mitigation of damages but only in support of a plea
of justification.If it refers to
something different from the libel, it cannot be admitted because it is specific
misconduct which it is not considered fair that you should bring up against him,
see Speidel v. Plato Films Limited.”

This shows that the decision in Speidel v. Plato Films concerns
evidence of particular facts not directly connected with the publication
complained of.It also highlights
an apparent difficulty for a defendant who cannot sensibly plead justification
or partial justification, but where there are nevertheless directly relevant
background facts which explain the context in which the defamatory publication
came to be made and which might be thought capable of reducing the plaintiff’s
damages.

37.In July 1991, a working group of the Supreme Court Procedure Committee,
chaired by Neill LJ, made a report on Practice and Procedure in Defamation.They considered Scott v. Sampson.They pointed out the unsatisfactory procedural manoeuvrings which I have
referred to earlier in this judgment.They
pointed out the injustice of a plaintiff who has misconducted himself in the
same sector of his life as that to which the libel relates recovering damages on
exactly the same generous basis as one who truly has an unblemished record in
the relevant area of activity.They
considered that there would be a significant improvement if it were possible for
defendants to rely upon specific instances of misconduct on the part of the
plaintiff for the purpose of reducing damages, provided that the allegations
related to the same sector of the plaintiff’s life as the defamatory
publication.If the allegations
were not sufficiently connected with the subject matter of the libel for a jury
to think that they might have any mitigating effect upon damages, the court
could refuse to permit reliance on them.The
recommendation would enable defendants to plead facts, not rumours.It would be immaterial whether the facts had previously been
widely known. They were concerned with the reputation to which the plaintiff is
entitled rather than that which he might have enjoyed.They noted that the Porter Committee in 1948 and the Faulks Committee in
1975 had recommended that the rule Scott v. Sampson should simply be
abrogated.

38.The Neill Committee’s recommendations led to what became the Defamation
Act 1996.Clause 13 of the
Defamation Bill was drafted to implement the Committee’s recommendations with
regard to Scott v. Sampson.The
clause did not survive into the Act, we are told for want of Parliamentary time.Various views were expressed in committee in support of and in opposition
to the clause.In the
circumstances, I do not think that any particular Parliamentary intention can be
discovered from the introduction of the Clause and for its failure to survive
into the Act.We are simply left
with the law as it was.

39.That, however, is to be seen in the light of the Civil Procedure Act 1997
and the Civil Procedure Rules.These
are a new procedural code with the overriding objective of enabling the court to
deal with cases justly (rule 1.1(1)).Dealing
with a case justly includes saving expense, dealing with the case in ways which
are proportionate and ensuring that it is dealt with expeditiously and fairly
(rule 1.1(2)).The court is obliged
to seek to give effect to the overriding objective when it exercises any power
given to it by the rules (rule 1.2).The
court is obliged to further the overriding objective by actively managing cases
(rule 1.4).Case management
includes confining issues. Rule 32.1, as MrPrice pointed out, enables the court to control the evidence which may be
given and gives the court explicit power to exclude evidence that would
otherwise be admissible.

40.The questions which the judge had to consider in the present case were
essentially procedural case management questions.Although questions relating to the admissibility of evidence may raise
issues properly characterised as issues of law, not only is the admissibility of
evidence essentially procedural, but the authorities to which I have referred
show that the admissibility or otherwise of evidence of reputation in reduction
of libel damages is heavily affected, if not determined, by questions of
procedural fairness and of case management.It will, generally speaking, normally be both unfair and irrelevant if a
claimant complaining of a specific defamatory publication is subjected to a
roving inquiry into aspects of his or her life unconnected with the subject
matter of the defamatory publication.It
is also in accordance with the overriding objective that evidence should be
properly confined, both in its subject matter and its duration, to that which is
directly relevant to the subject matter of the publication.Thus under the Civil Procedure Rules, the court now has ample power to
deal justly with the problems which, in the main, gave rise to the first and
third limbs of the decision in Scott v. Sampson.

41.Considering the decision as to admissibility which the judge had to make
in the present case in the first instance as a matter of case management and of
what is just, I consider that some parts of the particulars on which the
defendants wanted to rely should have been admitted.There was a background context to the defamatory publication. To keep
that away from the jury was, I think, to put them in blinkers.To determine the relevant background context and to confine
it properly, it is necessary to start with the defamatory publication itself.This was that the claimant “used to organise bands of hecklers to go
about wrecking performances of modern atonal music, particularly anything by Sir
Harrison Birtwhistle”.Relevant confined direct background context to this
publication would, I think, include that there was in 1994 a group who called
themselves “The Hecklers”, that the claimant was associated with the group
and that he subsequently claimed to have been its co-founder; that he
disassociated himself from The Hecklers’ boorish tactics of shouting down the
opposition in a letter to The Times dated 7th April 1994; that
Frederick Stocken, under the name of The Hecklers, encouraged people to join him
at the performance of Gawain at the Royal Opera House on 14th
April 1994 when they would be booing at the end; that there was no interruption
of Gawain that evening during its performance but that there was a bit of
booing at the end; and that the claimant was in the audience and joined in the
booing.On the other hand, in my
view, much of the rest of the material in the proposed particulars was
tendentious and essentially irrelevant to the subject matter of the publication
complained of.A proper application
of the Civil Procedure Rules would have excluded it.The material to which I have just referred as relevant is not intended to
indicate that I would exclude literally everything else.But I would certainly, for instance, exclude most of
paragraph (2) and the whole of paragraph (3).I refer to these by way of example.It seems to me that the claimant’s view of his own music was completely
irrelevant to the proper direct background context of the publication complained
of.The same would apply to any
investigation into theunobjectionable
debate into the comparative merits of atonal and other music.I think, on balance, that the tone of the claimant’s
publicly expressed attitude to The Hecklers and what they did should have been
admitted.That would have appeared
sufficiently from an appropriately confined selection of the documents to which
the defendants wanted to refer.

42.In my view, permitting the defendants to rely on the directly relevant
background context in the way in which I have described would not offend
anything said in Scott v. Sampson or Plato Films v. Speidel.The material to which I have referred as directly relevant
background context was, as I have indicated, recognised in Plato Films v.
Speidel as being admissible as the circumstances in which the publication
came to be made.In the present
case, those circumstances are not sensibly limited to the concert in memory of
John Smith and the fact that the claimant's music was played at it.For practical purposes, every publication has a contextual background,
even if the publication is substantially untrue.In addition, the evidence which Scott v. Sampson excludes is
particular evidence of general reputation, character or disposition which is not
directly connected with the subject matter of the defamatory publication.It does not exclude evidence of directly relevant background context.To the extent that evidence of this kind may also be characterised as
evidence of the claimant’s reputation, it is admissible because it is directly
relevant to the damage which he claims has been caused by the defamatory
publication.

43.Mr Price submits that the Deputy Judge was correct to disallow reliance
on the particulars because to do so would be to plead specific facts in partial
justification of the meaning advanced by the plaintiff for the purpose of
mitigating damages, and that this is not allowed.The authority mainly relied on for this proposition is Prager
v. Times Newspapers [1988] 1WLR 77.I
do not accept this submission.

44.I have already referred to the speech of Lord Denning in Plato Films
v. Speidel at page 1142, where he gave the example of a publication that a
man had been convicted six times for dishonesty, when in fact he had only been
convicted twice.Lord Denning said
the law did not permit a defendant, in mitigation of damages, to adduce evidence
which “tends to justification”.Lord
Denning said much the same in Dingle v. Associated Newspapers at 412 in
the passage which I have also quoted. But the defendant in the example in Plato
Films v. Speidelwas permitted
to adduce the same evidence in partial justification.If it were not so, the plaintiff would recover damages for a
character which he did not possess or deserve, and this the law would not
permit.

45.In Atkinson v. Fitzwalter [1987] 1WLR 201, the issue was whether
the defendants should be permitted to make a late amendment to their defence,
the effect of which would be to justify the plaintiff’s complaint that the
publication complained of alleged fraud against him.In that context, May LJ said at page 210G:

“To
approach the matter from another angle:although,
when a properly drafted plea of justification is included in the defence in a
defamation action it is permissible to rely upon any facts that are proved in
order to support it to reduce the damages, even though those facts by themselves
are insufficient to make good the defence as a whole, nevertheless it is not
permissible to plead, under the guise of particulars of justification, matters
which do not go to a plaintiff’s general reputation, with a view to leading
evidence about them solely to support an argument that he should receive a
smaller sum by way of damages.”

Parker LJ in the same case
said at page 214G:

“A
defendant is entitled to rely in mitigation of damages on any evidence which is
properly before the jury and this can include evidence in support of an
unsuccessful plea of justification; see the judgement of Neill LJ in Pamplin
v. Express Newspapers Limited.It
therefore appears to me to be of considerable importance that defendants should
be strictly limited to evidence which can truly be said to go to justification
and should not be allowed, under the guise of justification, to lead evidence
which does not in reality go to justification at all.”

46. In Prager
v. Times Newspapers [1988] 1WLR 77, there were applications by the plaintiff
to strike out a plea of justification, and by the defendant to amend the plea of
justification.In that context,
Purchas LJ said at page 88G:

“It
is clearly open to a defendant to plead in anticipation of any of the reasonable
alternative defamatory meanings and to justify on that limited basis.In this regard care must be taken to distinguish between pleading a
lesser, and different, defamatory meaning and achieving a partial justification
of the whole sting of the libel pleaded by the plaintiff.Although a partially established plea of justification may be
considered by the jury in mitigation of damages, it is not open to a defendant
to plead specific facts in partial justification of a libel with the sole
purpose of mitigating damages”.

Nicholls
LJ, at page 90D recorded a submission to the same effect and expressed the view
that it was correct provided that the words complained of were not capable of
bearing either of the two alternative meanings propounded by the defendant.Russell LJ said at page 93C:

“Secondly,
a defendant is not to be permitted to attack the character of the plaintiff
under the guise of particulars of justification:See Atkinson v. Fitzwalter [1987] 1WLR 201.If the plea of justification is directed to the real sting of the libel,
then facts in support of the plea may reduce the damages even though the plea
fails.But apart from this, as a
general rule, matters which do not go to a plaintiff’s general reputation but
which merely instance specific acts of misconduct are not to be pleaded or led
in evidence:See Speidel v.
Plato Films Limited [1961] AC 1090.”

47.In my view, these authorities show that it is not permissible to advance
an unsustainable defence of justification and thereby, under the guise of
particulars of justification, seek to rely on particulars which Scott v.
Sampson and Plato Films v. Speidel would not permit.That, however, does not prevent a defendant from frankly accepting that
there is no proper plea of justification, but seeking to rely in reduction of
damages on particulars which Scott v. Sampson and Plato Films v.
Speidel do not exclude.If this
were not so, there is a danger that the jury would be required to assess damages
in blinkers, in ignorance of background context directly relevant to the damage
which the claimant claims has been caused by the defamatory publication.This is consistent with the sense of what Lord Denning said in Plato
Films v. Speidel, where his conclusion was that it was permissible to adduce
the evidence in question.Thus, in
my view, a defendant is not prevented from taking the sensible course of
accepting that the publication means what it says and that it is not on the
facts justified, and yet putting in evidence directly relevant facts which in
other circumstances might have been ingredients of a defence of justification.It would, I think, be illogical and unfair if this were not so.Evidence in support of a plea of justification which fails is admissible
in reduction of damages.But the
very same evidence would not be admissible to a sensible defendant who
acknowledges that it will not support a plea of justification.What is not permissible is to plead a defence of partial justification
which in truth is no defence at all.

48. Mr Price submits that
to allow what he refers to as “back door” justification would be unfair and
give rise to conceptual difficulties and confuse the jury.I do not agree.The
jury can be told that the publication is defamatory and that it is not true.There is no defence.They
have to assess damages taking account of the evidence they have heard of the
context in which the publication came to be made.There is nothing conceptually difficult or confusing about that.I have already indicated that I consider that it would be unfair if the
material to which I have referred were not admitted.

49. To the extent which I
have indicated, therefore, I consider that the Deputy Judge’s conclusion
excluding the particulars on which the defendants wanted to rely in reduction of
damages was in part wrong.

50.
It does not, however, follow from this that his decision under Sections 8 and 9
of the Defamation Act 1996 as to the mode of trial was also wrong.On the assumption that the judge should have admitted some, but not all,
of the defendants’ particulars, he had to exercise his discretion taking also
into account the contents of the claimant’s witness statements.He had to consider whether summary relief would adequately compensate the
claimant for the wrong he had suffered.That
involved a broad discretionary judgment whether a declaration that the statement
was false and defamatory, an order that the defendant publish a suitable
correction and apology and damages not exceeding £10,000 would be adequate
compensation.In my view, the Deputy Judge gave proper reasons in the
present case for concluding that summary relief was not appropriate.I do not consider that the Deputy Judge would or should have reached a
different conclusion if he had permitted the defendants to rely on some of the
material in their particulars to the extent that I have indicated.In particular, although the limited particulars may by themselves have
been seen as capable of diminishing the claimant’s damages somewhat, the
evidence of the claimant’s witnesses would, assuming it were accepted, have
largely neutralised that diminishing effect.In the summary proceedings for which the defendants contended, that
evidence would have been received in writing without cross examination and would
have been accepted, except perhaps that part of it which was inconsistent with
the claimant’s subsequent published assertion that he was a co-founder of The
Hecklers.I consider, therefore,
that the Deputy Judge’s decision to refuse the defendant’s application for
summary disposal is not impugned.

51. It
remains to consider whether this Court should reduce the jury’s award of
damages of £8,000.[I record in
this context that neither party suggested that we should in any event make an
order for a new trial.]To succeed,
the defendants have to persuade us that, if the limited background facts to
which I have referred had been before the jury to explain the context of the
defamatory publication and if the claimant’s additional evidence had been
called, the jury’s award would have been less than £8,000.I am quite unpersuaded that the award would have been lower.I have already indicated that the limited version of the defendants’
particulars, taken by themselves, might have had a somewhat diminishing effect.I will assume against the claimant that the jury may have found that he
was, as he subsequently said, a co-founder of The Hecklers.But they would also have known that, a week before the
performance of Gawain, he publicly dissociated himself from disruptive
behaviour and, importantly, that the actual performance of Gawain was not
disrupted at all.It seems to me
that Elgar Howath’s evidence alone would have neutralised any real force in
the defendant’s case,I am
not satisfied that, in the circumstances under consideration, the jury’s award
of damages would have been smaller.

52.
For these reasons I would dismiss this appeal.

SIR
CHRISTPHER SLADE:

53. I
fully agree with the judgment of May LJ and wish to add only a few observations
of my own on the question of admissibility of evidence.

54.
Clause 13 of the Defamation Bill, which was placed before Parliament in 1996,
was designed to remedy an injustice which the working party of the Supreme Court
Procedure Committee in its report on Practice and Procedure in Defamation, made
in 1991, had identified as resulting from the rule in Scott v. Sampson.The clause, so far as material, provided:

“13.-(1)
In defamation proceedings the plaintiff is not entitled to damages for injury to
his reputation beyond what he would be entitled to if all facts affecting or
liable to affect his reputation (at the time that damages fall to be assessed),
in relation to the sector of his life to which the defamatory statement relates,
were generally known.

(2)The defendant may, accordingly, in mitigation of damages, lead evidence
not only as to the plaintiff’s general reputation at that time but also as to
specific facts which if they were then generally known would affect the
plaintiff’s reputation in relation to the relevant sector of his life.”

55. If that
clause had become law, the court’s decision in the present case would, I
think, have been an easier one.The
“relevant sector” of the claimant’s life would presumably have been his
activities as a musical composer and as a campaigner against modernist atonal
music.I have little doubt that the
clause, if it had become law would by itself have conferred on the defendants
the right to lead evidence at least as to those specific facts excluded by the
judgementioned below.

56. For reasons
not wholly clear however, clause 13 did not feature in the Defamation Act 1996.It is an unsatisfactory and, at least to me, surprising feature of our
law of defamation that the limits of the admissible evidence that can be given
in mitigation of damages are in some respects so ill-defined.I do not regard the present case as an easy one because the evidence
sought to be adduced does not readily fall either within or outside any category
dealt with by previous authority.

57. Gatley
states at para 33.44 that while the conduct of the plaintiff is a factor that a
jury can take into account when assessing damage, “conduct in this context
does not encompass the general behaviour of the plaintiff; it relates
principally to activities that can be causally connected to the publication of
the libel of which the plaintiff complains, though it might include more broadly
provocative actions by the plaintiff”.Justice
obviously requires the admissibility of evidence as to actions by a plaintiff
which have directly provoked the libel in question.In the present case, however, as May LJ has pointed out, nothing which
the claimant may have said or done in 1994 or subsequently can be said to have
caused or provoked the defendant newspaper to publish the words complained of.

58. May LJ has
nevertheless concluded that, within the limits summarised in paragraph 41 of his
judgment, parts of the particulars on which the defendants wished to rely should
have been admitted as a matter of case management and justice.He considers that there are matters which are directly relevant
background facts and explain the context in which the defamatory publication
came to be made.He considers that
they were accordingly admissible in evidence and should have been put before the
jury because they were directly relevant to the damage to the claimant’s
reputation suffered by him as a result of the publication.I agree, but add the following observations since I consider this to be a
special case on its facts.

59. I regard this
as a case where, on the facts pleaded, the claimant has deliberately sought for
himself a particular kind of reputation, that is to say as a militant opponent
of modernist atonal music who has been prepared, on at least one occasion, to
give effect to his opposition by action, as well as words.The following facts (among others) asserted in paragraph 5 of the defence
are, as I understand the position, either more or less admitted in the Reply, or
otherwise indisputable:

1.In about 1994, Frederick Stocken founded a group called The Hecklers to
oppose modernist atonal music.

2.The claimant himself was associated with The Hecklers from an early
stage.

3.The Hecklers procured the publication of a “sort of a manifesto”
(written by Mr Stocken on their behalf) in The Evening Standard on 14th
April 1994, in which they called upon the public to join in booing at the end of
the performance to take place at Covent Garden that evening of a revival
production of Harrison Birtwistle’s opera Gawain.[The penultimate paragraph of this piece began with the words:

“Join
us tonight at the opera – we’ll be booing at the end (if we did it during
thepiece, people would think it was part of the opera” ..]

4.In a letter to the Times published on 7th April 1994, the
claimant had written:

“the
answers to the problem of how to impress this new spirit upon the public is
surely not that of The Hecklers the boorish tactics of shouting down the
opposition”.

5.Nevertheless at the end of the performance of Gawain on 14th
April 1994, the claimant joined in the booing.

6.In an article published in the Guardian on 5th October 1996,
the claimant wrote:

“It is one thing to agitate while doing creative work, as I did when I
co-formed The Hecklers in 1994 and announced that we would boo Birtwistle's’ Gawain
(for being dissonantly passé) at the Royal Opera House …”

60.The booing of a musical performance after its conclusion does not
constitute the wrecking of the performance itself.I therefore agree with May LJ that the factors listed in the preceding
paragraph could not have been successfully prayed in aid to justify the
assertion that the claimant “used to organise bands of hecklers to go about
wrecking performances of modern atonal music”.Nevertheless, the article in the Guardian of 5th October 1996,
if nothing else, shows that the claimant claimed to have been the co-founder of
an organisation The Hecklers, and through that organisation to have procured the
booing of Gawain at the end of the performance at The Royal Opera House.To preclude the jury from knowledge of this fact and of the other facts
listed in the preceding paragraph above was indeed to compel them to look at
this case in blinkers when they came to asses the damages properly payable to
the claimant for any injury to his reputation resulting from the publication of
3rd June 1997.

61.The context of that publication was in short as follows.It was written in relation to a musical composer who had in the past (a)
widely publicised his distaste for modernist atonal music; (b) publicly claimed
to have organised a band of people to boo at the end of at least one
performance; of modern atonal music; (c) himself joined in the booing after such
a performance and (d) later boasted that he had done so.These matters were in my judgment directly relevant to the consideration
of his claim for damages.Justice
in my judgment required that they should be considered and nothing in the
decided cases precluded their consideration in the special facts of this case,
particularly after the introduction of the Civil Procedure Rules 1998, the
relevance of which May LJ has explained in his judgment.

62.Nevertheless, in the final result and for the reasons given by May LJ, I
too would dismiss this appeal.

LORD JUSTICE ALDOUS:

63.For the reasons given by May LJ, I would dismiss this appeal.

ORDER: Appeal dismissed; the appellants to pay 50 per cent of the costs
of the respondents in this court on a standard basis, subject to a detailed
assessment if not agreed.